Protesters for women's rights march to the Alabama Capitol to protest a law passed last week making abortion a felony in nearly all cases with no exceptions for cases of rape or incest, Sunday, May 19, 2019, in Montgomery, Ala. A protest of Ohio's abortion "heartbeat" ban is planned in Cleveland on Tuesday. (Butch Dill, AP Photo)(Butch Dill, AP Photo)

Alabama Attorney General Steve Marshall says a federal judge should grant, at least in part, a request for a preliminary injunction blocking enforcement of the state’s new abortion ban; but he will take the fight to uphold the ban to the U.S. Supreme Court.

Marshall on Monday filed a response to the ACLU and Planned Parenthood’s request to U.S. District Court Judge Myron Thompson for the preliminary injunction.

In May the Alabama Legislature enacted the Alabama Human Life Protection Act, which makes it a felony to provide nearly all abortions, “except when done to prevent a serious health risk to the child’s mother or end a pregnancy when the child suffers from a condition that would lead to his or her death shortly after he or she is born,” Marshall’s response states. “By any plausible interpretation of the Constitution, the Act should be upheld,”

But Marshall states in the response that the U.S. Supreme Court in Roe v. Wade and later rulings that abortion is legal up to the point of the fetus becoming viable. “To that extent, Plaintiffs are likely to prevail before this Court and should be granted a preliminary injunction,” he states..

Marshall argues any injunction should not block the entire law. Any injunction “should not prohibit the Attorney General from enforcing the Act against anyone who violates it with respect to a viable unborn child.”

Marshall cited in his response the U.S. Supreme Court’s ruling in the case of Planned Parenthood V. Casey, a 1992 decision that upheld Roe V. Wade and defined a viability line at what point a fetus can be aborted.

“Under Casey, the State can protect human beings on one side of the viability line, but not those on the other,” Marshall said in his response to the plaintiff’s request for a preliminary injunction.

“Because Alabama’s Human Life Protection Act would protect life on both sides of that line, the Act is inconsistent with Casey by prohibiting abortion of unborn children who cannot yet survive apart from their mothers. To that extent, Plaintiffs are likely to prevail before this Court and should be granted a preliminary injunction.”

“But while Attorney General Marshall will ask the Supreme Court to overrule these obviously and tragically wrong decisions (Roe v Wade and Casey), until those decisions are overruled, Plaintiffs are likely to prevail on their challenge to the Act as applied to abortions of pre-viability children,” Marshall stated in his motion.

A preliminary injunction would halt the law, the Alabama Human Life Protection Act, from going into affect on Nov. 15. Attorneys who represent the state’s abortion providers and Marshall’s office recently filed a joint report proposing to put the law on hold until May 2020 if certain issues can’t be resolved before the law is scheduled to take effect this fall. In that report Marshall had agreed that a temporary injunction would be appropriate to "preserve the status quo.”

Marshall also plans to challenge abortion doctors and clinics’ right to challenge abortion precedents.

“In addition to challenging Roe and its progeny, Attorney General Marshall also intends to challenge precedents providing uniquely relaxed standing rules in the area of abortion. In Singleton v. Wulff, 428 U.S. 106, 118 (1976), a plurality of the Supreme Court fashioned a blanket rule allowing third-party standing in abortion cases. Unlike any other area of the law, this rule allows abortion clinics and abortion doctors to assert constitutional claims (the purported right to an abortion) that do not belong to them.”

Earlier this year Gov. Kay Ivey signed the bill into law, which bans nearly all abortions except those done to protect the life of the mother.